BRYAN K. HURLBURT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Bryan K. Hurlburt appealed denial of his postconviction motion claiming ineffective assistance of counsel and seeking relief under Heggs v. State based on unconstitutional 1995 sentencing guidelines. The court affirmed the trial court's denial of all relief, holding that habitual offender sentences are unaffected by the guidelines unconstitutionality and that Hurlburt's five-year guidelines sentences were not departure sentences under the 1994 guidelines.
Hurlburt is not entitled to relief on any ground. The habitual offender sentences are not affected by the unconstitutionality of the 1995 guidelines. He cannot withdraw his open plea because he received notice of enhancements before pleading. His five-year guidelines sentences were not departure sentences under the 1994 guidelines and thus do not warrant resentencing under Heggs.
[1] Habitual offender sentences are not affected by the unconstitutionality of the 1995 sentencing guidelines.
[2] A defendant is not entitled to withdraw an open plea when they received notice of the State's intent to seek enhancements.
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Join FLexlaw to unlock all legal intelligence“Mr. Hurlburt is not entitled to re-sentencing under Heggs for his two habitual offender sentences, even though they fell within the 1995 sentencing guidelines range, because habitual offender sentences are not affected by the unconstitutionality of the 1995 sentencing guidelines.”
Establishes that habitual offender sentences receive different treatment than guideline sentences regarding constitutionality challenges
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Join FLexlaw to unlock all legal intelligenceHurlburt entered an open plea of guilty to six offenses in four separate cases and received six concurrent sentences. Two sentences were for time serv…
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PER CURIAM.
Bryan K. Hurlburt appeals a trial court order denying his motion for postconviction relief. We affirm without comment the trial court’s denial of Mr. Hurlburt’s claims of ineffective assistance of counsel. We also affirm the trial court’s decision to deny Mr. Hurlburt relief pursuant to Heggs v. State, 759 So. 2d 620 (Fla.2000).
Mr. Hurlburt entered an open plea of guilty to six different offenses in four separate cases and received six concurrent sentences. Two of these sentences were for time served and, thus, are not at issue here. Two of the sentences were habitual felony offender sentences, each in excess of five years. Two were guidelines sentences of five years’ imprisonment for two third-degree felonies.
Mr. Hurlburt is not entitled to re-sentencing under Heggs for his two habitual offender sentences, even though they fell within the 1995 sentencing guidelines range, because habitual offender sentences are not affected by the unconstitutionality of the 1995 sentencing guidelines. See Abaunza v. State, 781 So. 2d 486 (Fla. 4th DCA 2001); Hepburn v. State, 778 So. 2d 448 (Fla. 3d DCA 2001). Moreover, Mr. Hurlburt is not entitled to withdraw his plea pursuant to Murphy v. State, 773 So. 2d 1174 (Fla. 2d DCA 2000) (en banc), because he entered an open plea to these charges after having received notice of the State’s intent to seek various enhancements.
Finally, Mr. Hurlburt is not entitled to resentencing for the two guidelines sentences. Admittedly, the 1995 score-sheet originally used to sentence Mr. Hurlburt improperly included points for the offenses on which Mr. Hurlburt received habitual offender treatment. See Olsen v. State, 791 So. 2d 558 (Fla. 2d DCA 2001) (holding it is improper to score crimes for which defendant is receiving habitual offender treatment on scoresheet when defendant is being sentenced as habitual offender for some cases and under guidelines for others). However, if one excludes these offenses from that score-sheet, a proper 1995 guidelines calculation establishes a sentencing range of 66.6 months to 111 months. A comparable 1994 scoresheet results in a sentencing range of 42 to 70 months. Because Mr. Hurlburt’s sentences of five years on these charges were not departure sentences under the 1994 guidelines, he is not entitled to resentencing. See Heggs, 759 So. 2d at 627.
Affirmed.
PARKER, ALTENBERND, and COVINGTON, JJ., Concur.
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Robbins v. State, 816 So. 2d 783 (Fla. 2d DCA 2002)…t subject to the sentencing guidelines. The mere fact that trial court may have reviewed a 1995 guidelines scoresheet when determining Robbins’ habitual violent felony offender sentence did not entitle Robbins to Heggs relief. See Hurlburt v. State, 807 So. 2d 687 (Fla. 2d DCA 2002) (holding that habitual offender sentences were not affected by the unconstitutionally of the 1995 sentencing guidelines). But cf. Melgares v. State, 762 So. 2d 921 (Fla. 3d DCA 1999), reh’g granted in part, 762 So. 2d at 922 (Fla.…
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Deloach v. State, 831 So. 2d 691 (Fla. 3d DCA 2002)…2d 746 (Fla. 1st DCA 1995) (holding that a negotiated sentence precludes appeal or collateral challenge of conviction and sentence on double jeopardy grounds apart from an allegation of ineffective assistance of counsel); see also Hurlburt v. State, 807 So. 2d 687 (Fla. 2d DCA 2002) (holding that habitual offender sentences are not affected by the unconstitutionality of the 1995 sentencing guidelines); Hepburn v. State, 778 So. 2d 448 (Fla. 3d DCA 2001).…
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Lewis v. State, 223 So. 3d 383 (Fla. 2d DCA 2017)…PER CURIAM. Affirmed. See § 775.084(1)(a)(2), Fla. Stat. (1995); State v. Matthews, 891 So. 2d 479 (Fla. 2004); Robbins v. State, 816 So. 2d 783 (Fla. 2d DCA 2002); Hurlburt v. State, 807 So. 2d 687 (Fla. 2d DCA 2002); Cooper v. State, 902 So. 2d 945 (Fla. 4th DCA 2005); Hepburn v. State, 778 So. 2d 448 (Fla. 3d DCA 2001); Boyd v. State, 753 So. 2d 692 (Fla. 4th DCA 2000); Figueroa v. State, 632 So. 2d 195 (Fla. 3d DCA 1994). WALLACE, LUCAS,…
Authorities Cited
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Pagliaro v. Penske Auto Ctrs., Inc., 773 So. 2d 1174 (Fla. 2d DCA 2000)
- Hepburn v. State, 778 So. 2d 448 (Fla. 3d DCA 2001)
- Olsen v. State, 791 So. 2d 558 (Fla. 2d DCA 2001)
- Delvin Jones v. State, 781 So. 2d 486 (Fla. 4th DCA 2001)